CIV/APN/86/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

ODILON
TELI TELI Applicant

V

M.M.
QHOBELA 1st Respondent

CHAIRMAN
OF THE P.S.C. 2nd Respondent

MINISTER
IN-CHARGE OF THE P.S.C. 3rd Respondent

MINISTER
OF FINANCE 4th Respondent

SOLICITOR-GENERAL
5th Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. LEVY on the 26th November, 1985.

In this
natter the Applicant is a public servant in the employment of the
Ministry of Finance as an accountant.

At the
material time he was stationed at Qacha's Nek where he fulfilled the
duties of Sub-Accountant.

On 11th
July 1984 Applicant was the subject of disciplinary proceedings on
various charges brought against him under Public Service
Order 1970.

These
charges may be summarised as follows :-

Count 1

He intentionally altered or erased entries in the Sub-Accountant's
cash book and cash analysis book with intent to deceive.

Alternatively

He knowingly made false misleading and/or inaccurate statements in an
official document.

2

Count 2

He failed to comply with an official instruction.

Count 3

He improperly used property or stores in his official custody or
control or failed to account for or take reasonable care of such

property or stores as a result of which the Lesotho Government has
suffered a loss or general deficiency amounting to M2404.88.

It will
be readily seen therefore that Count 1 contains all the elements of
the crime of fraud while count 3 contains in its main
allegations a
charge of theft by way of a general deficiency of funds or property
in Applicant's hands.

From the
very day when Applicant was interdicted from performing his duties
while these alleged irregularities which led to these
charges were
being investigated, applicant protested that the allegations being
made against him amounted to criminal charges on
which he should be
tried in the Criminal Courts.

Notwithstanding
this protest by Applicant, the disciplinary proceedings were
continued against him and at the hearing before the
Adjudicator,
where Applicant was unrepresented, he was found guilty on all the
main charges and sentenced to be removed from office
by way of
dismissal.

Applicant's
founding affidavit contains this statement: "I say the failure
to have the misuse of Government funds as a Criminal
case constitutes
a serious irregularity as I believe the Public Service Commission has
no competence

3

to try
cases of theft." Applicant refers again to his previous request
to the Public Service Commission that he should be tried
for these
offences in a Criminal Court.

Apart
from this jurisdictional issue, the Applicant has also attacked the
proceedings before the Adjudicator and his findings as
being
irregular on various grounds and contrary to the principles of
natural justice. Suffice it for me to say that I find no support
for
Applicant's allegations on this score in the record of the
proceedings which appear to have been conducted by the Adjudicator

fairly and properly. I do not wish to examine these findings for the
reason that my conclusions in this matter render this unnecessary
and
undesirable.

Applicant's
main contention is based upon the provisions of the Public Service
Commission Rules 1970. Section 4(1) (vi) of the Public
Service Order
1970 empowers the responsible Minister to make rules regulating the
procedure of the Public Service Commission.

In
exercise of that power the responsible Minister made the Public
Service Commission Rules 1970 of which Rule 5-41 is apposite.
This
rule directs the head of a Department who has been informed that an
officer has committed a criminal offence to consult the
Director of
Public Prosecutions and seek his directions whether a prosecution is
to be instituted. The rule continues (in the present
tense) that if
the D.P.P. directs that a criminal prosecution is to take place, the
head of the department shall not proceed with
a disciplinary charge
involving the same facts as the prosecution until after the

4

conclusion
of the criminal proceedings. If the D.P.P. directs that no
prosecution is to take place and if the head of the Department

propose to commence disciplinary proceedings he prepares a charge.

It seems
to me that a very proper reason for this rule is that an officer
should not be charged with the offence of a breach of
discipline
which amounts to a criminal offence before the latter has been
disposed of by the D.P.P. whether by prosecution or by
a decision not
to prosecute. An officer whose employment is governed by these rules
should know that he is free to air his defence
as fully as possible
at any disciplinary inquiry without fear of thereby exposing himself
to criminal prosecution. The rule imposes
on the Head of Department
the duty to protect the interests of the officer concerned by first
referring the charge to the D.P.P.
and not to institute any
disciplinary proceedings until the D,P.P. has given his directions to
prosecute or not to prosecute as
the case may be.

It seems
to me that until the D.P.P. has given such directions the adjudicator
has no jurisdiction to hear the disciplinary charges
against the
officer unless possibly the officer, with full knowledge, acquiesces
in the continuance of the disciplinary inquiry.
It was common cause
that no consultation on the matter had taken place with the D.P.P.,
and that this rule had not been complied
with, nor did applicant
acquiesce. On the contrary, he protested vigorously.

Rooney J.
in CA. 269/82 Mafa V Minister In Charge of Public Service said in a
similar matter that "a breach of

5

discipline
which amounts to a criminal charge may not be brought against an
officer unless the matter has first been referred to
(the D.P.P.)."
Rooney J. does not motivate this bald statement but I am satisfied
for the reasons set out above that he was
right and that I should
follow that judgment.

It was
contended by the Respondents that Applicant had not taken this point
at the tribunal and that he is estopped from now doing
so. Even if
estoppel were an available answer to Applicant's attack on the
proceedings, before the Adjudicator, I am satisfied
that he
sufficiently raised his objection to being tried on criminal charges
by the adjudicator before a prosecution was instituted.
This
objection carried with it the implication that the objection would be
satisfied of necessity if the D.P.P. refused to prosecute.

It was
further contended by Respondents that the Applicant was himself the
local head of his department and that he would not be
obliged by the
rule to refer his own conduct to the D.P.P. This argument overlooks
the provisions of section 5(4) of the Public
Service Order 1970, as
amended, which assigns the duty of charging the head of a department
with a breach of discipline to the
Government Secretary.

I am
satisfied therefore that the proceedings of the adjudicator against
the Applicant held on 1st July 1984 and on following days
and the
finding of the adjudicator and the penalty imposed by him on the
Applicant should be

6

set aside
and that the Respondents should pay the costs of these proceedings
including the reserved costs and it is so ordered.

D.S.
LEVY"

ACTING
JUDGE

26th
November, 1985 .

For the
Applicant : Mr, Maqutu

For the
Respondents : Mr. Mpopo.